Nuclear regulators to Sen. Boxer: 'None of your business'

Attempting to solve the continuing mystery we could call “Who Killed San Onofre Nuclear Generating Station?” U.S. Sen. Barbara Boxer has demanded that the Nuclear Regulatory Commission cough up documents revealing (perhaps uncomfortable) details about precisely how San Onofre’s nearly new $1 billion steam generators came to poop out so very, very quickly; and what role the NRC’s regulation – or lack thereof – played in the fiasco.

The NRC, smiling tensely, has said it’s doing all it can to fulfill her request, thank you very much, but that it doesn’t have to give her, you know, everything, as a lot of that is none of Congress’s beeswax. It reminds Boxer that the NRC is an independent regulatory agency, and that “separation of powers concerns” protect it against forced disclosure of certain documents, to ensure that there’s not even the potential appearance of the NRC being bullied by Congress and its political whims.

Attention, folks: This is not some banal We The People v. We The People battle. While it would certainly be nice to know precisely what crippled San Onofre, and who knew what and when they knew it, there are enormously larger issues at stake:

• More than 116 million people live within 10 miles of America’s aging nuclear power plants. That’s more than one-third of the population of the United States of America.

• The operators of these aging nuclear reactors want to extend their working lives decades longer than originally envisioned. That means installing many new parts and pieces on all of them.

• If the NRC repeats the suspected San Onofre scenario elsewhere (i.e., plant owner opens the lid, says, “I’m just putting in a new light bulb!”; NRC says “Yeah, sure, fine!”; and that light bulb turns out to be more like a neutron star), well, one could argue that public health, safety – heck, even lives – are at stake.

So that’s why this battle is important. So important that, amid the whiplash-inducing legal volleys between the NRC and Boxer’s Senate Committee on Environment and Public Works, Boxer dropped her own little neutron bomb: The public release of a legal analysis that says the NRC and its rationale for withholding information is wrong, wrong, hopelessly wrong.

“These refusals to comply have been accompanied by constitutional and other legal justifications that are highly problematic and unsupported by accepted law and practice,” wrote Morton Rosenberg, a legislative consultant with 35 years in the American Law division of the Congressional Research Service.

“(T)he NRC Chairman demonstrates a profound misunderstanding of the plenary (legal word meaning “unqualified; absolute”) nature of Congress’s investigatory power in the circumstances prevalent in the SONGS matter; misstates the authority of three cited cases dealing with the law on congressional intercession in agency decisionmaking; ignores the overwhelming contrary case law ....; and shows a lack of awareness of over 90 years of congressional investigations in which agencies have been consistently obliged to provide documents and testimony ....

“In the present circumstance, there is no question of constitutional power allocation,” Rosenberg wrote. “The NRC is a creation of the Congress which alone is responsible for its mission, authority and funding and is ... subject to Congress’s plenary oversight power to determine how well it is performing.”

The NRC declined to respond to this particular little bomb. But, in the past, it has argued that it’s allowed to withhold from congressional inquiry documents related to ongoing NRC investigations, and documents detailing how it arrived at decisions and enforcement actions, and “internal deliberative documents.”

Why? Because the revelation of such documents would undermine the ability of its officials to communicate freely and candidly with one another to make sound and independent decisions, the NRC argued.

Now, these sorts of conflicts are fairly common. And they pretty much end only one way.

“They do have to, sooner or later, turn this stuff over,” said Denis Binder, law professor at Chapman University. “This is not a national secret that should be kept from the public. There were major problems with a nuclear power plant that made it shut down, and the people charged with oversight need to know what happened for possible regulation in the future.”

The NRC’s refusal to hand over the documents Boxer seeks “gives the impression that somebody screwed up and they’re trying to cover up,” Binder continued. “It’s common, but the investigators usually win. Congress has the power of the purse. Congress has created the agency. Congress controls the rules and regulations by which they operate. And Congress has an oversight function. The question to ask is, what are they hiding? What don’t they want to come out?”

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